Momentum builds to limit the detention powers of the NDAA

On October 9, the town of Oxford, MA passed a resolution limiting the detention powers of the National Defense Authorization Act of 2012 (NDAA). The resolution also made the provision that the Massachusetts legislature must “recognize the duty of the Commonwealth of Massachusetts to interpose itself between unconstitutional usurpations by the federal government or its agents and the people of this state."

The city council of Worcester, MA, the state’s largest city after Boston, considered such a resolution on Tuesday, October 15. While it was referred to the council’s Rules Committee, Benjamin Selecky, the Massachusetts representative for People Against the NDAA (PANDA), said the council was strongly supportive. Selecky added that the council stated their wish to educate the public about indefinite detention by putting the draft resolution through the standard approval process, including a public hearing.

Back on October 7, 2013, the city council of Albany, NY unanimously passed a resolution in opposition to the military detention provisions of the National Defense Authorization Act of 2012 (NDAA). Sections 1021 and 1022 of the NDAA grant the US military the authority to indefinitely detain persons, including US citizens, designated as terrorists by the President. However, the Albany resolution states:

“[T]he City of Albany is not a ‘battlefield,' and its citizens and constitutionally-protected persons are not currently subject to detention under the law of war…all federal and state law enforcement officials acting within the City of Albany [will] work in accordance with the Constitution of the United States…by assuring that any person subject to detention be afforded access to a trial, counsel and due process.”

PANDA national head Dan Johnson said the local focus of their “Take Back the Town” campaign is a deliberate strategy, since even if the NDAA were changed by Congress there is still the potential for the executive branch to claim war-time authority, as in the extrajudicial assassination of Anwar al-Awlaki. Johnson expressed that the purpose of local resolutions was to “remove plausible deniability of elected officials and law enforcement,” requiring them to fulfill their oath to defend the constitutional rights of persons within their jurisdictions. When asked what a long-term victory would look like, he said that every US state and territory would need to declare the application of the law of war on US soil unconstitutional.

There is historical precedent to make such a goal both necessary and desirable. The internment of Japanese Americans during World War II is the clearest example of executive detention violating civil liberties. Selecky observed that a positive model for the current campaign is the passage of personal liberty laws following the Fugitive Slave Acts of 1793 and 1850, in order to protect the freedom of slaves who had escaped to northern states. An example of a law whose application has expanded beyond its original purpose is the use of the Espionage Act of 1917 to prosecute whisteblowers such as Edward Snowden and Chelsea Manning. Similarly, the NDAA has the potential for abuse by future presidents, perhaps even to detain persons based on their political affiliations, since many activists classified as “terrorists” or “extremists” have been surveilled by law enforcement under the cover of fighting terrorism. Our history shows that indefinite detention should be rid from American society. Grassroots organizing is a key tool in making this a reality.